Leadbetter v. Laird

45 Wis. 522 | Wis. | 1878

NtaN, C. J.

This appeal from an order overruling a demurrer must be dismissed, -because it was not taken within thirty days after notice of the order.

The learned counsel for the appellants contends that, because the order was subsequently amended, and the appeal is from the amended order, the dime for taking the appeal should not begin to run until notice of the order as amended. The court is unable to adopt his view.

The time for appealing from every appealable order begins to run from notice of that order. If such an order be amended by a subsequent order, the latter may be appealable, but it cannot extend the time for appeal from the former. That is determined absolutely by the notice.

In the present ease, when the demurrer was taken, there was one complaint only. After it had been served on the appellants, and before they had demurred, it was amended by adding new parties. Strictly speaking, therefore, it was an amended complaint; and the order accordingly overruled the demurrer to the amended complaint. Afterwards another order was made striking out the word amended from the first order; so as topnake it overrule the demurrer to the complaint. The alteration was quite immaterial. Of the two, perhaps the first was the more correct in form; but both are the same in substance and effect.

If, therefore, the appeal could be taken as from the second order, it should be dismissed because that order is immaterial and unappealable. If it is to be taken'as from the first order, which is material and appealable, it was taken out of time.

By the Gourt. — Appeal dismissed.